Electronic discovery is a process by which a party produces certain documents required by law or rules in response to a document request or court subpoena. Electronic discovery is frequently used in legal proceedings such as corporate litigation, corporate merger approval, and administrative investigation.
In a typical legal proceeding, a party may, pursuant to rule of procedure, send a document request or a subpoena duces tecum to another party to compel it to produce documents containing any of specified categories of subject matters. Historically, paper documents were produced manually. The responding party reviews its documents, identifies all documents containing any of the enumerated categories of subject matters, and produces them for the requesting party. However, the information technology has caused companies and businesses to have extremely large document pools, and thus reviewing and producing documents by the manual method are no longer practicable. Therefore, a party responding to a document request has to use a document review platform for document review. Each platform consists of a server and server application and plural terminal computers connected to the server. Well-known review platforms that can be found on Google include Concordance, Summation, Applied Discovery, Iconect, Stratify, and Ringtail. Regardless of the platform used for an e-discovery project, the basic concept is the same. First, the documents from one or more custodians of the responding party are collected and stored on a server. If original documents are in the form of hardcopy, they are first scanned and saved as suitable image files which are then loaded onto the server. Certain electronic documents are converted into image file formats such as Tiff, PDF, and PNG. Other electronic documents may be converted into text files by optical character recognizing software while their native copies are also available for download. Most of the well-known review platforms deliver electronic documents to review terminals in text, TIFF, PDF, or native files and the reviewers at a terminal can choose any of them.
The files are indexed according to certain scheme, which is mainly for the convenience of assigning reviewing tasks to plural reviewers and tracking documents' processing statuses. Documents may be retrieved by using specific search keys and assigned with specific document number or bates-page numbers. On some review systems, documents may be displayed as files in one apparent folder on the review Browser of the terminal computer. Thus, documents can be assigned to different reviewers by virtual folders. On other platforms, documents may be presented to the reviewers in the order consistent with their consecutive numbers. Thus, documents can be assigned to plural reviewers by assigning documents by start and end bates numbers. In most of the review platforms, a project manager can use a search method to generate a review pool for job assignment or directly load documents as a review pool to be indexed for assignment.
Plural reviewers review documents from terminal computers that are connected to the server. Usually, each of the reviewers can log into a personal review account and open the assigned folder or document range to review documents. If the platform allows plural reviewers to review documents by ranges, each of the reviewers must go to the start document number of his assigned document range. Each of the review platforms has at least two panes: one for viewing the documents and one for marking the documents (often known as “tagging tree”). In reviewing documents, the reviewer opens a document on the review pane, reads the document, and conducts required analysis. Upon finishing reading the document, the reviewer clicks all applicable check boxes on the tagging pane according to review instructions. Each of the check boxes (“tags”) is associated with one of the document categories or responsive definitions (also known as “specifications”) displayed on the tagging pane. For example, the tagging tree on the tagging pane may contain the following checking boxes and definitions: [X] None-responsive, [ ] Responsive, [ ] Hot document, and [ ] Privileged document. The responsive documents may be further classified into many subclasses. Some examples of the responsive definitions are: [ ] Internal Personnel matter, [ ] Corporate Structure, [ ] Press Release, [ ] Sale of Goods, [ ] Prior Litigation, and [ ] Cost Analysis. The number and natures of definitions used in each case are unique and may be completely different from what are used in other cases. Thus, the server must allow the project administrator to setup and modify the tagging tree for each project. The reviewer may write an annotation for a document in an annotation field associated with the document.
After the reviewer finishes the first document, the reviewer then clicks a document-advancement button or submission button. This action causes the server to write the values for the tags into the database for the document and causes the server to load next document. The reviewer repeats the same process to review next document.
Each of the reviewers reviews documents in a similar way. Review of corporate documents to achieve high consistency is a very difficult task because the subject matters in corporate documents may be about anything under the Sun. They may be written at any technical levels in any styles. Documents may contain a large number of special acronyms, special terms and expressions, unfamiliar product numbers, short product names and specifications, unknown and incomplete people's names, unfamiliar transactions, incomplete places and locations, and implied assumptions which are understandable only to their intended readers. Most of the casual documents such as email are written in informal style, appear in folders out of context, and contain spelling, grammer and factual errors. Accordingly, documents are not readily understandable to anyone who is an outsider of the discussion cycle. Accordingly, document review productivity is generally low especially at the early stage of review. Reviewers constantly struggle to understand unfamiliar terms, acronyms, theories, concepts, transactions, events, locations, people, roles, and relationships. If the task of e-discovery is to review old documents for a corporation whose staff has been changed completely, the current staff can do little to help the reviewers understand what was written on the old documents.
An inherent problem in document reviews is that each of the reviewers is in the learning process. The knowledge learned by one reviewer cannot be ported to another reviewer in an efficient way. Case information that must be absorbed for conducting a competent review includes general business, technical background, transactions, employees and their roles, the attorneys for the company, and other information such as common acronyms and jargon. On document review sites, case information may be posted on a black board or clipboard for sharing. This method is however ineffective and inconvenient. In the alternative, case information may be shared periodically in project meetings. However, distribution of case information by verbal announcements cannot eliminate misunderstandings. For a large review project involving a large number of reviewers, some members may be absent from such meetings. Therefore, some of the reviewers members may be uninformed of case information. As a result, review quality is compromised due to misunderstanding and the lack of communications. Moreover, if a matter involves a massive amount of case information requiring hundreds of reviewers, non of such methods has meaningful utility.
Sharing information by using Window's sharing drive has been used as early as the birth of the Windows operation system itself. However, this method presents several problems. First, such arrangement does not allow plural reviewers to write information to the same source and the Windows operating system may lock the file for read only. Second, such a method is not suitable for customization and is not effective. Finally, there is no suitable way for ensuring that all information posted is accurate and reliable. Posting a piece of wrong information for sharing may cause other reviewers to rely on wrong information to the clients detriment. Each of the cases may require totally different ways of organizing and sharing case information.
For large discovery projects, the amount of case information may be massive. It is often impossible to decide what is important and what is not during review. Any attempt to collect case information by one or two staff is unrealistic. Whenever, a case raises a new issue, a linear search and review is conducted to find revelant documents on the issue. This approach, while it is highly effective, will consume a great deal of review time. A solution to this problem could be using a powerful data-sharing system specifically tailored for a case. Unfortunatley, a data-sharing system tailored for one specific case may be useless for other cases. Moreover, the long developing cycle and the high development costs for developing such a data-sharing system discourages its use. While existing data-sharing systems may have all required power, they are unfit for use in a large team environment. When several reviewers are trying to add a specific piece of information to a data-sharing system while several other reviewers are trying to find the same information, the system is unworkable. Problems may be encountered in information validation, data-collecting efficiency, and data-retrieving efficiency. Such a system must be implemented for a constantly change enviroment. The inability to share real time data in a large dynamic environment directly affects discovery quality and is a major reason for unmanageable production costs.